Core Statutes on Criminal Law - Assignment Example

Fully dissect the elements of the crime of murder. Are there any strict liability elements? In order for the courts to accept a charge of murder it is necessary to prove that the accused had the necessary mens rea and actus reus for the offence. The prosecution will need to prove that it was the intention of the accused to kill or cause serious bodily harm to the victim. Intention to kill as been described as Where a person of sound mind and discretion, unlawfully kills any reasonable creature in being under the Queens Peace with intent to kill or cause grievous bodily harm1. (Archbold: 19-1, 2008). It used to be a requirement of the prosecution to prove the malice aforethought of the accused2. However, in more recent cases, the courts have redefined intention. This was evidenced in R v Moloney [1985]3 and R v Woollin [1998]4. The premeditation element has also been altered and the courts are now able to find the accused guilty of murder if the prosecution can show that the accused intended to cause the victim serious bodily harm5. In determining whether the accused should be found guilty of murder juries are instructed to examine the foresight of the accused but should be told to consider what the accused actually foresaw as opposed to what he ought to have foreseen6 making the test of foreseeability a subjective test. Recklessness has also been used in the courts to prove the intention of the accused. Cases such as R v Cunningham [1957]7 and Metropolitan Police Commissioner v Caldwell [1981]8 have demonstrated how recklessness can be used to prove a charge of murder. The approach taken by the courts in applying recklessness using the case of Cunningham was that the defendant was aware of the risk involved in his action yet continued in his venture. Caldwell widened the application by considering recklessness in situations where the accused either considered the risk to be minimal or that there was no risk at all. This notion was confirmed by Lord Keith in R v Reid [1992]9 where he stated that ‘absence of something from a person’s state of mind is as much part of his state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognised risk’. The use of manslaughter is usually applied where the intent of the accused is oblique. Oblique intent is where the accused is aware that his actions might cause the death of the victim but this is not what the accused desires to happen10. With direct intention the accused actually wanted to kill the victim and the courts can invariably use the test for foresight to support this assertion11. Strict liability is not applied in charges of murder, as such charges require proof of the intention of the accused. Would the law be improved if we were to follow the suggestion of the Law Commission that homicide be graded into first and second degree murder as well as manslaughter? The main aim of introducing a 3 tier system for murder is to give the courts the power to consider the actions of the accused when determining the level of charge12. At present the courts only have the power to accept a plea of manslaughter in cases where the direct intent element of the charge of murder cannot be proven beyond reasonable doubt. The introduction of a 3 tier system would mean that second degree murder might be able to be charged when direct intent cannot be proven. The present system is inflexible when dealing with murder charges13. The difficulties of not being able to prove direct intent have allowed defence counsels to convince the jury that the victim’s death was more a misfortune rather than a deliberate plan14. The courts have also experienced difficulties when the defendant has admitted to others that he intends to kill the victim. The courts have, on many occasions, determined that the admission is insufficient to satisfy the requirement of direct intent15. The courts have allowed the adducing of evidence showing intent to cause grievous bodily harm as proof of an intention to kill16, on the basis that the defendant ought to have known that the harm he was inflicting could cause the victim to die17. The new proposals would remove the direct intention element leaving the prosecution only to prove that the person doing the attacking ought to have foreseen that his actions could cause the death of his victim18. Using this as a guideline by which to establish a charge of murder would make it so that the principles for proving harm in tort cases would be the same for a murder case. The 3 tier system would mean that first degree murder would carry a mandatory life sentence, whilst second degree murder would allow the court to issue a life sentence if deemed to be appropriate in the circumstances. Manslaughter charges could also carry a life sentence at the discretion of the court. Charges for second degree murder would include those were the accused pleads provocation or diminished responsibility as a defence. The overall impact of the changes would give the jury a greater degree of autonomy in deciding the fate of the defendant. By allowing the jury to have more choices the defendant could be found guilty of second degree murder rather than manslaughter. The advantage of this from a court perspective is that the judge would be at liberty to issue a higher penalty in terms of sentencing. If the proposed changes are implemented, it is likely that more life sentences will be issued by the courts. This is good news for the families of victims, but bad news for the defendants. Eric and Stuart plan a burglary of Victor’s home. Stuart insists to Eric that if in the course of the burglary they are disturbed by Victor, a frail man of 80, they will not hurt him and will leave his house. This is the first time that Stuart has burgled with Eric and he is aware of Eric’s deserved reputation for violence. During the burglary they are disturbed by Victor who is punched on the jaw by Eric and rendered unconscious. Stuart remonstrates with Eric but nonetheless he keeps on taking Victor’s property. Victor remains unconscious and dies three days later from dehydration. His home help, Angela, who is employed by the local authority, failed to visit Victor during these three days although she was rostered to do so. It was during the period of the half term holidays and she could find no-one look after her young children. Had she called in on Victor he would have survived. Consider the criminal liability of Eric, Stuart and Angela. It is possible in the above, for Eric and Stuart to both be held liable for the death of Victor. Although Eric was the one that assaulted Victor, Stuart might also face charges in relation to the death, as the court might determine that he ought to have foreseen the possibility that this could have happened. This might particularly happen in this case as it has been stated that Stuart knew of Eric’s reputation for violence. If Stuart had tried to stop Eric, or had assisted Victor after the attack he might have been able to avoid liability for the death. Both are likely to be charged with the burglary. If Stuart had not gone along with Eric to commit the burglary, he could have still been charged with conspiracy, unless he communicated to Eric his intention not to assist with the burglary19. Inchoate offences include assisting20 or encouraging a crime21, conspiracy to commit a crime22 or incitement to commit a crime. An inchoate offence is where the accused does some action that is likely to lead to the commission of an offence. Conspiracy will be charged if the person incited to commit the crime agrees to assist23. It could be argued that Victor would not have died if Angela had attended the following day, however, Eric and Stuart could not rely on this as a defence to murder, as they ought to have foreseen that their actions might have caused Victor to die, even if Angela had attended. If Angela had attended, and had given first aid to Victor, but he died as a result of negligent treatment on her part, then Eric and Stuart could argue that the chain of causation had been broken24. Angela is not likely to be charged with anything, as she would have been under no obligation to assist Victor, even if she had visited him. Balowski is prescribed anti-depressants for a long standing illness. He is advised not to drink alcohol with his medication. He is sitting in his usual pub when Mike, his tenant, sees that Balowski looks unhappy, and decides to try and cheer him up. He buys Balowski, a vodka and orange juice, telling him that it is only orange juice. After five more drinks, Balowski leaves the pub feeling drowsy and disoriented. In the street he sees Rik, another tenant, and he grabs hold of Rik, and starts to swing him around. When he lets go of Rik, Rik falls into the busy road, and is hit by a passing car. Rik subsequently dies from his injuries. Neil sees the accident and he rushes over to Balowski to confront him about what he was doing. Balowski, fearing an attack from Neil, acts as he sees it, quickly to avert the danger. He lifts Neil into the air, and drops him onto his head. Neil suffers serious head injuries. Balowski leaves him in the street. No one assists for two hours and Neil later dies in the hospital. Advise Balowski as to his criminal liability, if any. Balowski could be charged with murder, or alternatively manslaughter in the above. However, he could rely on the defence of automatism. A defendant can be unconscious or conscious when a crime is committed as a result of automatism. The court in R v Stone [1999]25 defined automatism as “a state of impaired consciousness in which an individual, though capable of action, has no voluntary control over that action”. Those relying on such a defence, are in essence, admitting that the act occurred but that they did not voluntarily commit that act. Insane automatism occurs where the accused is suffering a disease of the mind as in R v Rabey (1981)26. Non-insane automatism can occur where the defendant has received a blow to the head as in R v Bleta (1964)27 or where the defendant is suffering from delirium or us sleepwalking28. Hypoglycaemia has also been pleaded on some occasions where the defendant has attacked another whilst suffering a hypoglycaemic attack29. Abnormalities of the mind have been pleaded where the defendant was suffering post-natal depression as in R v Reynolds [1988]30, battered woman syndrome as pleaded in R v Ahluwahlia [1992]31 and R v Hobson [1998]32 and excessive jealousy as in the case of R v Vinagre [1979]33. In R v Lloyd [1967]34 where the defence pleaded that the defendant was suffering from a substantial impairment of mental responsibility the court stated the substantial impairment should be determined in the context of ‘more than some trivial degree of impairment but less than total impairment.´ As his drink had been spiked, Balowski could argue that he was not fully aware of what he was doing, and that the drink had affected the balance of his mind, due to the fact that he was taking anti-depressants at the same time. Alternatively, with regard to the death of Rik, Balowski could argue that the chain of causation has been broken, by Rik falling into the road and being run over by the car. In R v Mellor35 the accused was found guilty of murder even though the victim might not have died had the victim have been given oxygen. By contrast in R v Jordan36 the court found the accused not guilty, as the injuries inflicted by the accused were no longer an operative cause of death, when the victim finally died. Critically evaluate the extent to which shopkeepers who sell knives to 18 year old gang members are responsible for later stabbing that occurred, should their liability be broader? Under the Violent Crime Reduction Act 2006 s43 and amendment has been added to s141A of the Criminal Justice Act 1988. The effect of this amendment is to make it a criminal offence to sell any knife, knife blade or razor blade, any axe; and any other article which has a blade or which is sharply pointed and which is made or adapted for use for causing injury to the person, to any person under the age of 18. Previously the age limit was set as 16, but with the recent rise in knife crime, the government decided it was necessary to raise the age limit to 18. Those found guilty if selling knives to anyone below this level, can be subject to a fine and/or imprisonment. Although it could be argued that the shopkeeper ought to be held responsible if someone where to be stabbed using the knife sold by the shopkeeper, the courts and the government have, so far, refused to impose such liability on the shopkeeper. Making shopkeepers responsible in this manner might lead them to exercise increased diligence, before allowing a young person to buy a knife; however, as most persons buying a knife might be buying this for its proper intended purpose, it could be argued that requiring proof of identity is too extreme. In order to avoid liability for the selling of knives to persons under 18 the shopkeeper has to demonstrate that they used due care and diligence in attempting to ascertain the age of the person buying the knife. This was held to be the case in Enfield LBC v Argos Ltd [2008]37 in which the court found that the defendant had exercised the diligence and care laid down by the company, with regard to confirming the age of the customer. The court also felt that criminal charges would be inappropriate, given that since the incident had been brought to their attention, the defendant had taken further steps to ensure this did not happen again, by training the staff to ask for proof of age in situations were the sales assistant had reason to believe that the customer was under 18. Critically evaluate the arguments in favour of and against the approach of the House of Lords in Morgan Smith and the Privy Council in Holley. In the Morgan Smith case, the House of Lords was asked to determine whether a plea of provocation could be entertained, in a situation were the defendant is claiming clinical depression at the time of the attack. Several women’s groups felt that it was important for the court to recognise provocation as a defence, to assist those women who had been the victim of abuse for years before finally retaliating and killing heir husband. Unfortunately the decision in Morgan Smith also opened the floodgate for provocation to succeed in cases where a husband kills his partner in a fit of rage after discovering that she had been unfaithful. In this case the Lords determined that juries ought to be entitled to take into consideration the characteristics of the defendant that might lead them to lose self-control. Although many critics felt that this case had been wrongly decided no further cases went before the Lords until 2005, meaning that the defence of provocation was never challenged. In Holley the Privy Council for Jersey determined that Morgan Smith had been wrongly decided, and that the court should not consider the chronic alcoholism of the defendant as a characteristic when determining whether provocation could be used to minimise the charge to manslaughter. Although in general, decisions by the Privy Council can only be used as persuasive in English law, the Lords decided that the council were in fact correct in their decision, and decided that a review of their previous decision in Morgan Smith was appropriate. Although such a decision might affect claims by battered wives that they were responding to provocation, there needs to be more stringent control on the decision making process were provocation is averred. The proposal to alter the present system for murder charges into a 3 tier system, similar to that in the US, would seem to offer a way in which to deal with situations were the balance of the mind of the defendant is impaired. For this reason, it would appear that the decision in Holley should be supported rather than the decision in Morgan Smith. Jim, a member of the “anti-government militia’, sets two time-bombs in a department store. He phones the store half an hour ahead of the bombs going off, and tells them to clear the building, but not to send in any bomb disposal experts, as the bombs are designed to go off when tampered with. The first bomb, owing to a malfunction goes off three minutes after his phone call, killing three shoppers. The shop is cleared of people, and fifteen minutes later, a bomb disposal expert, Edward, is sent in to dismantle the bomb. When Edward touches it, the bomb goes off, killing him. Jim decides that Sam, another member, is in fact a police informer. Therefore he orders David to break both of his legs and force him to walk into a meeting of the militia to show what happens to “traitors to the cause.’ David breaks Sam’s leg and whilst forcing him towards the meeting room, Sam dies of shock. Does Jim intend the deaths? Is he reckless towards them? In the above, the courts are likely to take the view that Jim was reckless in his actions, and that he ought to have been aware that such actions could lead to the death of the shoppers as well as the death of Sam. Given that Jim placed the bomb with the intention of causing an explosion, he ought to have realised that the explosion might cause serious harm or death of anyone in the vicinity. The warning given to the store in relation to not sending anyone to try to disarm the bomb would not be sufficient for him to be able to avoid liability for the death of Edward38. In the situation with Sam, Jim obviously intended to cause him serious harm, by instructing David to break his legs. Under the mens rea for murder, the prosecution need only prove that the accused intended to kill or cause serious bodily harm to the victim. As this could be proven in this case, the court is likely to hold Jim responsible for the death of Sam. The court are likely to take the view that Jim was reckless in his actions39. Jim could argue that it was not reasonably foreseeable that the bomb would go off early, or that Edward would ignore the instruction not to try to disarm the bomb. He could also argue that it was not reasonably foreseeable that Sam would die as a result of the shock. However, in the circumstances, the courts would more than likely infer that Jim intended to cause serious harm, and therefore should be held liable for the deaths. 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